Description
Students must provide a critical review of the questions, topics and issues posed and substantively reply to the contributions of at least three peers. Individual postings should include a full discussion of the content of the question posed and explain how it relates to the concepts in the weekly text readings and other resources. The postings should be analytic in nature and include comparisons/contrasts, and examples that can bolster your point. The Discussion is for your benefit and it is important to respond to the discussion topic and to engage others in a running dialogue.
Your initial post should be 250 words. You should then respond to 3 or more posts 250 words each.
This can be accomplished by:
Validating with additional evidence from the literature.
Posing a thoughtful question with a commentary which generates further discussion.
Providing an alternative point-of-view, with evidence and examples.
Offering additional insight into how the concept might be understood, with evidence provided with real world examples.
Consent Searches Question: A police officer hears a rumor that Dave is selling illegal drugs out of his house. One day while patrolling the neighborhood, the officer sees Dave walking down the street. The officer approaches Dave and tells him he is worried about him and asks permission to search his house. Dave asks the officer if he has to allow him to search his house. The officer responds by telling Dave that if he doesn’t, he will go attempt to get a search warrant. Based on this, Dave consents to allow the police officer to search his house, and the officer finds over one hundred baggies of drugs. Are the drugs admissible at a criminal trial? Why or why not? Explain in detail and support your position.
Classmate 1 Jonathan: In this situation the officer attempted to gain consent by coercing Dave into granting him consent to search his residence. Courts have long recognized that when a police officer threatens or makes suggestions to a citizens in order to gain consent, it is a coercive act. Threats to seek or obtain a search warrant, as we see in the provided example, lead the individual to believe that obtaining a warrant is a nondiscretionary procedure, and therefore should consent to the search out of fear.1 Because Dave was coerced into giving consent, the drugs are not admissible as evidence in court.
Threats can often be subjective to review. For Example in United States v. Salvo, the court held that the statements from FBI agents were not baseless, and was not an act or coercion. Salvo was under investigation for child molestation and related conduct based on incriminating electronic mail. The FBI agents approached Salvo at his dorm room and requested to speak with him inside of his dorm room. For fear of embarrassment for the accusations against him, Salvo agreed to speak with the agents but not in the confinement of his dorm room. An agent told Salvo, we can do it discreetly or go to the Courthouse and talk to the Ashland County Prosecutor, and get a warrant and be back with uniformed police to conduct the search, and he [Salvo] would be excluded from the room. The district court found that Salvos consent was not voluntary because he was coerced through fear. The Sixth Court, however, overturned the District Courts ruling, implying that the agents statement of obtaining a search warrant, did not taint Salvos consent to the search.2
Like our other constitutional rights, Fourth Amendment rights may be waived, and an individual may consent to a search of his/her person or premises by officers who have not complied with the amendment. The court insists that in this case, the burden of proof is placed on the prosecution. They must evaluate the totality of circumstances and determine whether or not consent was freely given, or has been coerced. A defendants actual knowledge of the right to refuse consent is not essential for a search to be voluntary, and law enforcement are therefore not required to inform the individual of their rights, as notable in the Fourth Amendment version of Miranda warnings. Consent, however, cannot be regarded as voluntary when a police officer asserts his official status and claim of right inducing an occupants yield, because of the stated factors.3
References:
- Gardiner, T. (1980) Journal of Criminal Law and Criminology Consent to Search in Response to Police Threats to Seek or to Obtain a Search Warrant: Some Alternatives V. 71, No. 2 Retrieved on March 23, 2021 from https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6175&context=jclc
- United States v. Salvo, 133 F.3d 943, 945 (6th Cir. 1998)
- Justia, (n.d.) Consent Searches Retrieved on March 23, 2021 from https://law.justia.com/constitution/us/amendment-04/18-consent-searches.html
Classmate 2 Ivan: The drugs are not admissible as evidence at this criminal trial, because they were the product of a coerced search and police officer intimidation. The Officer persuaded him (Dave) by saying that if he does not consent to the search, he will go attempt to get a search warrant. If Dave had agreed without any persuasion or intimidation, then the drugs would be perfectly admissible evidence in court.
Any process must be considered reasonable in the eyes of the law, but in addition is balanced by two important interests. One, is the intrusion on an individual’s Fourth Amendment rights, and the legitimate government interests, such as public safety (not applicable in this case). The fourth amendment protection relies most of the time on the location of the search or seizure (United States Courts. (n.d.). Although voluntary consent clearly implies a person is granting consent, the U.S. Supreme Court has always reviewed the standard of reasonableness of a citizens consent. The term consent has created several jurisprudences focusing on the reasonableness of police conduct. Did police use (unreasonable) coercive tactics that would override a (reasonable) persons free will? However, because of the Fourth Amendment, an officer does not need to be right every single time, it must have to be reasonable (Burke, 2016).
Burke, A.S. (2016). Consent Searches and Fourth Amendment Reasonableness. Florida Law Review Vol. 67(2), p.509-563. Retrieved March 20, 2021, from https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1238&context=flr.
United States Courts. (n.d.). What Does the Fourth Amendment Mean? Retrieved March 20, 2021, from https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does-0.
Classmate 3 Stephanie: This week is a bit tricky, when it comes to search and consent details matter! The individual controls the situation and the scope ultimately, not the officer. Consent can be taken away at any point during the search if it given voluntarily. The courts have been quick to find validity in consent based simply upon the existence of an alternative choice, without exploring the desirability or feasibility of that option. It has been cited whether a reasonable person would feel free to decline the officers requests or otherwise terminate the encounter. Courts philosophys suggest people understand they can exercise their options and one that chooses to be searched when they are free to say no or stay when they could go is not only unforced, but in fact wants to cooperate.
In Sibron v. New York, a police officer approached the defendant in a restaurant and told him to accompany the officer outside. Barren of any indication whether Sibron accompanied [the officer] outside in submission to a show of force or authority which left him no choice, or whether he went voluntarily in a spirit of apparent cooperation with the officers investigation.
The narrative exist that coercion and voluntary consent as either/or conditions in a false binary: consent that is not coerced by improper state conduct is treated as if it is happily and freely given. It also fails to consider the natural tendency of people to comply with authority. Social psychology suggests that typical people, even if they realize they have the option not to cooperate with law enforcement, may lack the fortitude to do so.
In this scenario, an officer is free to approach Dave and even ask if he can search his house. Things get a little fuzzy for me when Dave asks the officer if he has to allow him to search his house. Officers can tell subjects that if they dont comply they will attempt to get a warrant. Police do not have to articulate any reason at all for requesting consent to search The Supreme Court has made clear that the Constitution does not prohibit police officers from using deception. Though the Court has not specifically addressed the use of deception by police officers requesting consent to search, lower courts permit deceit as long as it does not render the consent involuntary under the totality of the circumstances.
Totality of the Circumstances Test is just that it examines the circumstances surrounding the consent. This test is based on the Supreme Court’s holding in Schneckloth v. Bustamonte that “the question of whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.
This example is consent given coercively. A citizen may believe that obtaining a warrant is a nondiscretionary procedure and therefore may “consent” to the search. The consent in such a situation may be no more voluntary the citizen may be responding out of a belief of inevitability rather than out of a free decision to allow the search. However courts have ruled it unnecessary to prove that the person who gave consent knew that he had the right to refuse. The Fourth Amendment protection against unreasonable searches and seizures does not require a knowing and intelligent waiver of constitutional rights.
References
Alafair S. B, (2016) Consent Searches and Fourth Amendment Reasonableness, 67 Fla. L. Rev. 509, retrieved from http://scholarship.law.ufl.edu/flr/vol67/iss2/11
Gardiner, T (1980 )Consent to Search in Response to Police Threats to Seek or to Obtain a Search Warrant: Some Alternatives, 71 J. Crim. L. & Criminology 163 retrieved from https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6175&context=jclc
Schneckloth v. Bustamonte. (n.d.). Oyez. Retrieved March 15, 2021, from https://www.oyez.org/cases/1972/71-732
